Wednesday, April 8, 2009

Democracy In Action

It seems that the election of Al Franken to the U.S. Senate is basically a fait accompli. This is a little embarrassing for America—Franken’s books had little in the way of serious political thought, and were poorly researched and unfair. I believe—and this is mere conjecture, and time may prove it unfair to Franken—that future generations will see the election of Al Franken as similar to the elections of Bella Abzurg or Dennis Kucinich (his first election)—as shameful, never to be repeated mistakes.

(What was Kucinich’s first election? Some people have forgotten, but his first prominent government job was as mayor of Cleveland, elected at the age of thirty-one. His performance was about as strong as you would expect, although he was slated for a mob hit, which was only lifted when the city fell into default).

But whether or not Franken is a competent Senator, his election is worrisome, and those worries arise from fears that are far more important than the quality of Franken’s political brain. Because the 2008 Minnesota Senate was a travesty, and should never happen again, anywhere, or at least not too many more times.

Franken will, eventually, become Minnesota’s junior Senator. Coleman will be the loser. But it is impossible to say with certainty which man deserves to win or lose. The vote counting in Minnesota was plagued with irregularities and mistakes. Franken will win—but it is impossible to say with any conviction that he was the candidate with the most votes.

After the initial count—which showed Coleman ahead—absentee ballots came flowing in, from unusual places. Some were found in poll workers cars, others were recounted or discounted because of mistakes made during the first count.

A recount began, and both sides started flying in lawyers to make sure that no legal stone was left unturned. Both sides started challenging every possible ballot (particularly absentee ballots, which have more rules attached to them), even if the voter’s intent was obvious. Some of these challenges were upheld, others were rejected; in the end, over twelve thousand absentee ballots were rejected, out of over two hundred eighty thousand cast.

By all accounts, Coleman’s team of lawyers did a very poor job—they were outhustled and outmaneuvered by Franken’s team. And the Coleman camp still maintains that different Minnesota counties apply the rules for absentee ballots inconsistently, and that Democrat counties tend to be slack, while Republican counties are more stringent.

Coleman’s biggest mistake was his campaign’s reaction to a Minnesota Supreme Court decision that held that previously rejected absentee ballots should be included in the final count, provided that both sides agreed. Coleman allowed 933 ballots to be counted—without first getting a guarantee of uniform treatment of all absentee ballots. The 933 ballots increased Franken’s lead, and Coleman was unable to get enough addition absentee ballots counted to take the lead. Coleman was plagued by poor legal advice throughout the legal battle.

Franken won the election fair and square—the recount process was even-handed, and his lawyers were much better. He did not steal the election. But nobody, even Franken, could say with any degree of certainty that he got the largest number of legitimate votes. Maybe he did, and maybe he didn’t. But he was victorious mostly due to the skill and experience of his lawyers.

That sort of thing can be fatal for a democracy. If voters cannot trust that their votes will be counted, they lose confidence in the democratic system. And if that confidence is lost, democracy cannot work. This is hardly the first time this has happened—George W. Bush won Florida in 2000 in much the same way that Franken won Minnesota—but it should be the last. If elections are decided by lawyers, and not votes, then democracy is meaningless.

"Franken won the election fair and square—the recount process was even-handed, and his lawyers were much better. He did not steal the election. But nobody, even Franken, could say with any degree of certainty that he got the largest number of legitimate votes. Maybe he did, and maybe he didn’t. But he was victorious mostly due to the skill and experience of his lawyers."

I know Republicans are not supposed to admit this, but couldn't the same be said of Bush? And besides the US has a long history of shady elections. While this doesn't negate your argument I think we do need to keep perspective here.

Daniel my good man you've officially gone of the deep end on this one.

First, there's the obvious issue of due process clause in the 14th Amendment. You can not have unequal applications of the law. You cannot have one set of standards beneficial to one candidate and then not apply those same standards to the other individual.

Secondly, you've got a 5 member canvassing board left with the task of assessing voter intent. And, if you've not seen some of those ridiculous ballots being reviewed, any objective reviewer could clearly see the dubious nature with which they overwhelmingly went to Franken. That MN SOS Mark Ritchie has previous ties to ACORN and the fact that ACORN filed more than 43,000 registration forms in 2008, 75 percent of all new registrations in the state, it was all but certain that Minnesota was facing vote fraud problems even before the election.

Which brings me to my 3rd and final point and probably the most alarming. It's a thing called the law of probability.

This from John Lott Jr., senior research scientist at the University of Maryland, regarding the improbabilities of this particular race:

"When voters woke up on Wednesday morning after the election, Senator Norm Coleman led Al Franken by what seemed like a relatively comfortable 725 votes. By Wednesday night, that lead had shrunk to 477. By Thursday night, it was down to 336. By Friday, it was 239. Late Sunday night, the difference had gone down to just 221 -- a total change over 4 days of 504 votes.

Amazingly, this all has occurred even though there hasn’t even yet been a recount. Just local election officials correcting claimed typos in how the numbers were reported. Counties will certify their results today, and their final results will be sent to the secretary of state by Friday. The actual recount won’t even start until November 19.

Correcting these typos was claimed to add 435 votes to Franken and take 69 votes from Coleman. Corrections were posted in other races, but they were only a fraction of those for the Senate. The Senate gains for Franken were 2.5 times the gain for Obama in the presidential race count, 2.9 times the total gain that Democrats got across all Minnesota congressional races, and 5 times the net loss that Democrats suffered for all state House races.

Virtually all of Franken’s new votes came from just three out of 4130 precincts, and almost half the gain (246 votes) occurred in one precinct -- Two Harbors, a small town north of Duluth along Lake Superior -- a heavily Democratic precinct where Obama received 64 percent of the vote. None of the other races had any changes in their vote totals in that precinct.

To put this change in perspective, that single precinct’s corrections accounted for a significantly larger net swing in votes between the parties than occurred for all the precincts in the entire state for the presidential, congressional, or state house races.

The two other precincts (Mountain Iron in St. Louis county and Partridge Township in Pine county) accounted for another 100 votes each. The change in each precinct was half as large as the pickup for Obama from the corrections for the entire state.

The Minneapolis Star Tribune attributed these types of mistakes to “exhausted county officials,” and that indeed might be true, but the sizes of the errors in these three precincts are surprisingly large.

Indeed, the 504 total new votes for Franken from all the precincts is greater than adding together all the changes for all the precincts in the entire state for the presidential, congressional, and state house races combined (a sum of 482). It was also true that precincts that gave Obama a larger percentage of the vote were statistically more likely to make a correction that helped Franken.

The recent Washington State 2006 gubernatorial recount is probably most famous for the discovery of ballots in heavily Democratic areas that had somehow missed being counted the first and even second time around. Minnesota is already copying that, though thus far on a much smaller scale, with 32 absentee ballots being discovered in Democratic Hennepin County after all the votes had already been counted. When those votes are added in, they seemed destined to cut Coleman's lead further.

Indeed, it is probably through the discovery of new votes that Franken has his best shot of picking up new votes. Despite the press pushing a possible replay of election judges divining voters’ intentions by looking at “hanging chads” to see if voters meant to punch a hole, that shouldn’t be an issue in Minnesota. The reason is simple: optical scan vote counting machines return ballots to voters if no vote is recorded for a contested race."

SteveB--quite right. I think Bush won the 2000 election legitimately. Did he get the most votes? I don't know. Nobody can, and that is bad.

Soapie--you may be right--I'll need to look into it more. Scott Johnson covered this story pretty well, and he thought Franken won fairly. But whatever happened, this can't keep happening--it shakes your faith in democracy.

"Scott Johnson covered this story pretty well, and he thought Franken won fairly."

Scott Johnson? Well holy Hanna slap my ass and call me Judy. Scott Johnson (of Powerline fame) is not someone I would turn to for an objective analysis Daniel.

Lest we forget...Scott W. Johnson is a Minneapolis attorney. For more than fifteen years Johnson has written with his former law partner John H. Hinderaker on public policy issues including income inequality, income taxes, campaign finance reform, affirmative action, welfare reform, and race in the criminal justice system.